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“Courts cannot take over power to frame laws”

Chairman of a parliamentary panel has raised the issue of “judicial activism,” saying courts cannot take over the power to frame laws from the government and Parliament.

“Judicial activism is fine. If there is any failure, courts can question the government or pass strictures. But if one organ [in the system] fails it does not mean that the other organ will automatically take over the powers. Can the government say it will clear the huge pendency of cases in the Supreme Court?” said Shantaram Naik, chairman of the Standing Committee on Personnel, Public Grievances and Law and Justice, at a press conference.

The report was tabled in the Rajya Sabha on Thursday.

“There are three parts to judicial activism. One is that courts interpret a provision of law, which may be vague and explain it, expand it or make it clear. The second part is that courts lay down guidelines in their judgments and such guidelines are considered as if they are Acts of Parliament. Thirdly, if, for any reason, the government fails to make a law of those guidelines, then the guidelines remain for years in the form of a judgment. That means that the power of legislation is taken over by courts in this form. Is this fair? Governments should file review petitions in all such cases,” he said, citing the Vishakha judgment, which sought to set up a system to deal with harassment of women in workplaces.

He also gave the example of the Supreme Court’s directions for compulsory registration of marriage. “This means that only if courts approve, the government and legislature can enact,” he said.

Asked if “judicial activism” did not reflect a failure of the legislature and the executive, he said the government could be questioned for its failures but its role could not be taken over by the judiciary, just as the government could not presume to do the courts’ job. “There are cases pending in the court [but] the government cannot [take] over the role of courts to dispose of cases.”

Mr. Naik was responding to questions on the role of the judiciary as recommended by the panel headed by him and the collegium (judges appointing judges) regarding the system of appointment and transfer of judges, which the government proposes to replace with a national judicial commission. “All political parties should be one and protect their rights,” he said adding that the panel had reiterated a review of the Collegium system.

The panel had recommended that the judge-population ratio must be corrected. “At present, the judge-population ratio is 15.5 judges per million population and it is grossly inadequate to dispense justice in a reasonable [amount of] time,” it said.

Government cannot [take] over courts’ role to dispose of cases: Shantaram Naik